Products Liability Law Daily Dyas/Frye standard abandoned in favor of Daubert for determining admissibility of expert testimony
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Friday, October 21, 2016

Dyas/Frye standard abandoned in favor of Daubert for determining admissibility of expert testimony

By Pamela C. Maloney, J.D.

In response to a question certified by a District of Columbia trial court regarding the applicable standard governing the admissibility of expert testimony proffered on the issue of general causation, the District of Columbia Court of Appeals adopted the standard set forth in Federal Rule of Evidence 702, as interpreted by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., for all civil and criminal cases for which trials are scheduled to begin after the date of the decision. In doing so, the court abandoned the long-standing general acceptance standard applied within the jurisdiction pursuant to Frye v. U.S. and Dyas v. U.S. (Motorola Inc. v. Murray, October 20, 2016, Fisher, J.).

The underlying action involved 13 cases brought against numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation causes brain tumors. After four weeks of evidentiary hearings on the admissibility of the expert testimony proffered by cell phone users, the trial court concluded that some of the proffered expert causation testimony was admissible under the Dyas/Frye standard, but that most, if not all, of the cell phone users’ experts would likely be excluded under the Rule 702/Daubert standard. As a result, the trial judgecertified for interlocutory appeal the question of whether the District of Columbia should adopt Rule 702 (or a revised Frye standard) for the admissibility of expert evidence. The court of appeals decided to adopt Rule 702 and remanded the case for further consideration.

Dyas/Frye standard. In accordance with the principles previously set forth by the D.C. Court of Appeals in Frye and Dyas, expert or scientific testimony is admissible only if the theory or methodology on which it is based has gained general acceptance in the relevant scientific community. The focus of the inquiry is not on the acceptance of a particular conclusion derived from the methodology, but rather on the acceptance of the methodology itself.

Daubert standard. In 1993, the U.S. Supreme Court held that the Frye "general acceptance" test had been superseded by Rule 702, explaining that a rigid general acceptance requirement was at odds with the liberal thrust of the federal rules’ general approach of relaxing the traditional barriers to the admission of opinion testimony. The High Court emphasized that the trial judge must still ensure that, to be admissible, all scientific testimony or evidence must not only be relevant, but must be reliable, meaning trustworthy.

Under Daubert and its progeny, the focus of the inquiry is not only on the methodology used, as was the case under the Dyas/Frye standard, but also on the application of that methodology in a particular case. As a result, the impact of Daubertand its progeny has been the relaxation of the initial barriers to the admission of expert testimony, while emphasizing the trial judge’s increased role as gatekeeper. However, the High Court stressed that the trial judge’s gatekeeping obligation should not replace the normal tools of the adversary process such as vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.

Adoption of Rule 702. In briefing the question certified for review, the parties and amici recommended three options for the appeals court’s consideration: (1) retain the current Dyas/Frye test; (2) adopt Federal Rule 702, as amended to reflect Daubertand its progeny; or (3) craft a revised version of the Dyas/Frye test. After careful consideration, the D.C. appellate court concluded that Rule 702’s expanded focus on whether reliable principles and methods have been reliably applied set forth a standard that was preferable to the Dyas/Frye test. The ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike, the court explained.

Although the appeals court considered revising the Dyas/Frye test, as some jurisdictions have done, it concluded that were substantial benefits to be gained from adopting a test that has been widely used. For example, the D.C. courts could learn from the decisions of other courts that have applied Rule 702 or its state counterpart.

Application of Rule 702. The court went on to acknowledge that the transition would not be easy, and noted that one considerable cost of adopting Rule 702 was that both judges and lawyers would have to adjust to new rule. There also was a question of what to do about the types of expert testimony that have been commonly admitted under the Dyas/Frye test and queried whether the courts in the jurisdiction should revisit the admissibility of every form of expert testimony.

Turning to the guidance provided in both Daubert and the Advisory Committee Notes to Rule 702, the appeals court said that general acceptance could have a bearing on the reliability inquiry. Trial judges have the discretion to avoid unnecessary reliability proceedings in ordinary cases in which the reliability of an expert’s methods properly was taken for granted, and to require appropriate proceedings in the less usual or more complex cases in which there is cause for questioning the expert’s reliability, the court noted.

Challenges to new standard. The cell phone defendants raised two objections with regard to the change in standard. First, they pointed out the enormous amounts of time and money already spent on discovery and pretrial litigation in these cases. Second, they faulted the cell phone users for agreeing to use the Dyas/Frye test in the underlying cases. In response, the appeals court explained that Dyas and Frye remain binding precedent in the jurisdiction until revisited by the court sitting en banc, and, further, that it was unlikely the court would have accepted an interlocutory appeal without a fully developed record.

The appeals court also rejected the contention that any new rule should not apply to these cases, explaining that such an outcome would be inconsistent with the very purpose for entertaining an interlocutory appeal. However, the court reserved for a later time, when the issue was properly before it, the question of whether the new standard applies to cases that had already been tried by were not yet final on direct appeal.

The case is No. 14-CV-1350.

Attorneys: Terrence J. Dee (McDermott Will & Emery) for Motorola Inc. Jeffrey B. Morganroth (Morganroth & Morganroth, PLLC) for Michael Patrick Murray.

Companies: Motorola Inc.

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